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B-243196, May 13, 1991, 91-1 CPD 462

B-243196 May 13, 1991
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Highlights

PROCUREMENT - Bid Protests - Agency-level protests - Protest timeliness - GAO review PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - Apparent solicitation improprieties DIGEST: Protest to the General Accounting Office that requirement for other than a dry-blended dishwashing compound is unduly restrictive of competition and that the requirement should have been set aside for small business concerns is dismissed as untimely since the initial agency-level protest was untimely filed after bid opening. Was to be supplied in accordance with a commercial item description contained in the solicitation. Industrial's bid was sent by United States Postal Service Express Mail and was received in the bid opening room at 12:45 p.m. on March 6.

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B-243196, May 13, 1991, 91-1 CPD 462

PROCUREMENT - Bid Protests - Agency-level protests - Protest timeliness - GAO review PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - Apparent solicitation improprieties DIGEST: Protest to the General Accounting Office that requirement for other than a dry-blended dishwashing compound is unduly restrictive of competition and that the requirement should have been set aside for small business concerns is dismissed as untimely since the initial agency-level protest was untimely filed after bid opening.

Attorneys

Industrial Packaging Co., Inc.:

Industrial Packaging Co., Inc. protests as unduly restrictive of competition a requirement for other than a dry-blended dishwashing compound in invitation for bids (IFB) No. TFTC-90-SF-7904, issued by the General Services Administration. The dishwashing compound called for in Items 1-5, was to be supplied in accordance with a commercial item description contained in the solicitation. Industrial also challenges the agency's decision not to set aside this acquisition for small business concerns.

We dismiss the protest.

The solicitation specified 11:00 a.m. on March 6, 1991, as the time and date for bid opening. Industrial's bid was sent by United States Postal Service Express Mail and was received in the bid opening room at 12:45 p.m. on March 6. The agency determined that the late delivery of Industrial's bid was not due to government mishandling and, therefore, Industrial's bid was rejected. The protester also sent another United States Postal Service Express Mail package to the agency at the same time it sent its bid. This package, which contained an agency-level protest, was received by the agency's procurement division at 11:15 a.m., and was opened by an employee in the procurement division at 11:19 a.m. on March 6. Industrial filed its protest with our Office in the afternoon of March 6, asserting the identical grounds of protest as that raised in the agency -level protest.

Under our Bid Protest Regulations, protests concerning alleged apparent solicitation improprieties must be filed either with the contracting agency or this Office prior to bid opening. 4 C.F.R. Sec. 21.2(a)(1) (1991); Herndon Thompson, B-240748, Oct. 24, 1990, 90-2 CPD Para. 327. Industrial acknowledges, it did not file a protest with the agency until after bid opening, and since its initial agency-level protest was untimely, Industrial's subsequent protest to our Office is also untimely. See 4 C.F.R. Sec. 21.2(a)(3); Novitas, Inc.-- Recon., B-238178.2, Feb. 23, 1990, 90-1 CPD Para. 220; Darome Connection, B-230629, May 16, 1988, 88-1 CPD Para. 461.

Industrial attributes the late submission of both its bid and its protest to its "hesitation on deciding to make known our objections and lack of clarity of instructions in participating in the bid protest process." However, a protester is on constructive notice of the rules concerning the proper time for filing a protest since our regulations are published in the Federal Register; thus, a protester's lack of knowledge of our filing requirements will not convert an untimely protest to a timely one. Chapman Smidt Hardware, Inc.-- Recon., B-237888.2, Jan. 8, 1990, 90-1 CPD Para. 35.

The protest is dismissed.

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